Opinion: Clarence Thomas must recuse from January 6 cases

Associate Supreme Court Justice Clarence Thomas, left, sits with his wife, conservative activist Virginia Thomas, while he waits to speak at the Heritage Foundation on Oct. 21, 2021, in Washington, D.C.

Associate Supreme Court Justice Clarence Thomas, left, sits with his wife, conservative activist Virginia Thomas, while he waits to speak at the Heritage Foundation on Oct. 21, 2021, in Washington, D.C. Drew Angerer / Getty Images/TNS


Published: 01-02-2024 6:00 AM

Jonathan P. Baird lives in Wilmot.

Back in November, the U.S. Supreme Court announced a new code of conduct. The announcement came in response to mounting criticism of the unethical behavior of certain justices, particularly Clarence Thomas. His accumulation of expensive unreported gifts from billionaire patrons had to be an embarrassment to all the other justices.

The Supreme Court’s announcement momentarily raised expectations, but it turned out the new code of conduct was a triumph of form over substance. The code contained no enforcement mechanism. There is no way for anyone to invoke a code violation. The code offers only the appearance of accountability.

The ethical issues that are upcoming are anything but inconsequential and they locate Justice Thomas at the center of controversy. At issue is whether he should be recused from January 6-related cases. It appears that there will be three January 6-related cases on the High Court’s docket and there may be more.

There is the matter of Trump’s claimed immunity from prosecution as a former president. Then there is the question of whether he is disqualified from running for president because of the 14th Amendment prohibition that bars officials who have engaged in insurrection from running for office. Finally, there is the case of Fischer v United States, where a man charged with offenses related to the January 6 assault on the Capitol asks the Court to dismiss the charge he obstructed an official proceeding.

Ethical issues are raised in all three cases because of the January 6 role of Justice Thomas’s wife, Ginni Thomas. Ms. Thomas was an active participant and a key behind-the-scenes player in the insurrection. She attended the January 6 Stop the Steal rally although she did not enter inside the Capitol after things got out of hand. She told the January 6 Committee that she still believed the 2020 election was stolen from Trump.

After the election, Ms. Thomas texted Mark Meadows, Trump’s chief of staff, that he should contest the election result, accusing Biden and the Democrats of “attempting the greatest heist of our History.” On the morning of January 6, she wrote her Facebook followers, “Love MAGA people” and “God bless each of you standing up or praying.”

Ms. Thomas had texted: “Biden crime family and ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship managers, fake stream media reporters etc) are being arrested and detained for ballot fraud right now and over coming days and will be living in barge off GITMO to face military tribunals for sedition.”

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The New York Times reported Ms. Thomas played a peacemaking role between feuding factions of January 6 rally organizers. She emailed state legislators in Arizona and Wisconsin about creating false slates of electors. She co-signed a letter in December 2021 calling for House Republicans to expel Representatives Liz Cheney and Adam Kinzinger from the Republican conference for joining the January 6 committee.

There is a federal statute, 28 USC 455, which requires judges to disqualify “when their impartiality might reasonably be questioned.” Justice Thomas has a clear conflict of interest because his wife has aligned with one side of the January 6 fight. She could possibly be a witness. She has a material stake in how the Court decides.

Both conflict of interest and the appearance of impropriety are implicated. Justice Thomas would have an interest in ensuring the exoneration of his wife. While she is not a January 6 defendant herself, she was an accomplice in various aspects of the Trump multi-pronged insurrectionary schemes.

As Sen. Dick Durbin recently said, “There are so many unanswered questions about the relationship of the justice and his family with the Trump administration that I think in the interests of justice, he should recuse himself.”

Under the Court’s new code of conduct there is a judicial canon about avoiding the appearance of impropriety. There is a section under disqualification that says a justice should disqualify himself where his spouse has an interest that “could be affected substantially by the outcome of a proceeding.”

It is not an ethical close call to see that Justice Thomas has no business ruling on January 6 cases. To his credit, he did recuse from one case where his former law clerk, John Eastman, was a defendant but there is not yet any indication he will recuse from other January 6 cases. He has already participated in some, including a solo dissent in a case where he unsuccessfully tried to block the January 6 committee subpoena for presidential records, including records that included his wife’s activities.

There are many unexplored ethical issues around Ginni Thomas and her husband. She has received many thousands of dollars from conservative dark money interests. Some of these funders have had interests before the Court.

For example, she earned more than $200,000 in 2017-18 from the anti-immigrant Center for Security Policy. Their founder, Frank Gaffney, signed an amicus brief in Trump v Hawaii, a case that allowed Trump’s Muslim ban to move forward. Thomas cast the deciding fifth vote.

Unfortunately, there is no requirement that a spouse of a justice who owns a firm must reveal the identities of her clients which could reveal potential conflicts of interest. Because of that reality, there is no way to know if a spouse’s business venture is serving as a backdoor to payments to a justice.

We now do know that Justice Thomas has been subsidized by ultra-conservative billionaires who were afraid he might leave the Court. ProPublica reported that Thomas received trips and vacations he failed to report which totaled in millions of dollars. Thomas had been in deep debt in his early years on the Supreme Court.

Justice Thomas stands as the best example of the failure of ethical self-policing. When left to his own devices, misconduct ensued. There is an old judicial maxim, “No man shall be a judge in his own cause.”

Where Ginni Thomas and January 6 are concerned, that is Clarence Thomas.